Guidance on incorporation of standard form “law and arbitration” provisions in charterparties by way of email fixture recaps

In London Arbitration 2/20 the tribunal determined that it had jurisdiction under a standard “Gencon 94” form “law and arbitration” provision, which had been incorporated into the charterparty through the wording of the parties’ recap email.

Factual summary

The charter was evidenced by a fixture recap email. The email contained various detailed provisions relating to the description of the vessel, volume of cargo, laycan, loading and discharge ports, laytime, demurrage et al. The email’s final sentence read as follows: “owise as clean Gencon 94 cp incl cls paramount … to be amended / altered as per above main terms agreed.”

When a dispute subsequently arose, the owners appointed an arbitrator in accordance with the law and arbitration clause in the standard Gencon 94 form. The charterers disputed the arbitrator’s jurisdiction over the matter, arguing that the provision was not a “main term” agreed in the email and therefore did not apply.

Tribunal’s ruling

The tribunal clarified that the correct approach to the construction of the email’s wording was to take a clean copy of the Gencon 94 and to write into it the main terms agreed in the recap email. It found that it could not be suggested that, simply because the law and arbitration clause was not specifically referred to in the agreed main terms, it did not apply. The contract therefore included the standard form Gencon 94 law and arbitration clause.

Reference was made to the fact that the meaning of the phrase “main terms” is not established. Given that main terms can therefore be quite limited, or more extensive as in this case, the parties will be well advised to consider carefully the concluding wording used in their recap emails.